J. T. SWINNEY AND M. G. HARRISON, APPELLANTS
v.
THE FLORIDA LAND AND MORTGAGE COMPANY, LIMITED, A CORPORATION, CHARLES TOWNSAND MURDOCK, LEONIDAS MOREAU LAWSON, JAN ANN LANGERHUISEN, ALEXANDER CRUM MACLAE, HENRY JOHN BROUGHTON KENDALL, CHARLES DUANE WILLARD, JAMES H. SCHUMACHER, W. A. COCHRAN, CHARLES H. COCHRAN, HELEN COCHRAN STRATON, COVEY'S FLORIDA PLANTATION COMPANY, INCORPORATED, W. M. BENT, ALFRED T. HOLLEYMAN, THOMAS H. BOLSHAW, O. H. PARKS, W. H. SIMMONS, CHARLES TAYLOR, STEPNEY AUSTIN, DAVID WHALTON, M. C. HARRIS, SALARIS & LUMDEY, HERETOFORE CO-PARTNERS, H. B. CLAFLIN COMPANY, A FLORIDA CORPORATION, T. C. PARKER, ABRAHAM VESTBURG, OLIVE W. BROWN AND C. G. BROWN, APPELLEES
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The Florida Supreme Court denied a motion to dismiss an appeal filed by appellees, holding that by raising jurisdictional challenges beyond mere personal jurisdiction, the appellees waived their right to contest procedural defects in the appeal record and submitted themselves to the court's jurisdiction.
The motion to dismiss was denied. Although appellees appeared solely for the purpose of moving to dismiss, by raising jurisdictional challenges in ground No. 4 that questioned not only the court's jurisdiction over their persons but also over the cause itself, they entered a general appearance and waived any right to object to the procedural defects in the appeal record.
“The appellee can, if he chooses, waive the formal record of the entry of appeal and can submit himself to the jurisdiction of the Supreme Court by voluntary appearance, notwithstanding a failure to record the notice of appeal.”
Establishes that appellees can waive technical defects in the appeal record through voluntary appearance, citing Garrison v. Parsons
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Join FLexlaw to unlock all legal intelligenceAppellants Swinney and Harrison appealed a chancery court decision to the Florida Supreme Court. The notice of appeal was filed on July 4, 1927, but n…
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Per Curiam.
This case is before the Court on motion to dismiss the appeal filed by counsel appearing specially for that purpose only. There are four grounds presented in the motion, as follows:
“1. Because no entry of appeal in this cause was ever entered in the Chancery Order Book by the Clerk of the Circuit Court for Charlotte County, Florida, as required by law.
2. Because the purported notice of appeal was not upon being filed in the said Clerk’s office entered forthwith in the Chancery Order Book by him as required by law, but that such purported notice was filed in said Clerk’s office on ,the 4th day of July, A. D. 1927, and was not until August 27th, 1927, entered by him in the Chancery Order Book. 3. Because less than thirty days elapsed between the recordation of the purported notice of appeal in the Chancery Order Book by said Clerk, and the return day of this appeal.
4. Because no sufficient notice of said appeal has ever been given to these appellees to give this Court jurisdiction of this cause or appellees.”
In Garrison v. Parsons, 41 Fla. 143; 25 Sou. 336, it was held:
“The appellee can, if he chooses, waive the formal record of the entry of appeal and can submit himself to the jurisdiction of the Supreme Court by voluntary appearance, notwithstanding a failure to record the notice of appeal.”
In Ray v. Trice, 48 Fla. 297, 37 Sou. 582, this Court says:
“Where an appellee appears generally in Supreme Court and moves to dismiss the appeal upon grounds other than those relating solely to the jurisdiction over his person, he can not be permitted to question the sufficiency of the record entry of appeal.”
In this case although the appellees have appeared solely for the purpose of moving to dismiss this appeal, they have not confined their motion solely to the question of the jurisdiction of the court over their persons, but in ground No. 4 of their motion they have questioned the jurisdiction of the court as to the cause as well as to the persons of the appellees and have thereby placed themselves in the status of having entered a general appearance and brought themselves within the jurisdiction of the court. The motion to dismiss should be denied and it is so ordered.
Denied. Whitfield, P. J., and Terrell and Buford, J. J., concur. Ellis, C. J., and Strum and Brown, J. J., concur in the opinion.
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Citator
Cited By
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Great Am. Ins. Co. v. Iona V. Peters, 105 Fla. 380 (Fla. 1932)…her than those relating to jurisdiction of the person, as to amount to a general appearance in this court. See Ortell v. Ortell, 91 Fla. 50, 107 So. 442; 4 C. J. 1339 et seq.; 2 Encyc. P. & Prc. 637, 654; Swinney vs. Fla. Land & Mortgage Co. et al., 94 Fla. 653, 114 So. 567. In Crandall on Fla. Comm. Law Prae. 660, it is said: “The parties, or any of them, to whom the writ is made may move to dismiss, quash or supersede the writ if they so desire. If made before the return day t'he motion is to supersede…
Authorities Cited
- Ray v. Trice, 48 Fla. 297 (Fla. 1904)
- Garrison v. Parsons, 41 Fla. 143 (Fla. 1899)